STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

This case came on for final hearing on September 18, 2008, in Pensacola, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

For Respondent: Lula Williams, pro se

1604 West Scott Street Pensacola, Florida 32501

STATEMENT OF THE ISSUE

The issue is whether Petitioner has just cause to terminate the employment of Respondent as a school bus driver.

PRELIMINARY STATEMENT

On or about May 20, 2008, Petitioner Escambia County School Board (Petitioner) terminated the employment of Respondent Lula Williams (Respondent). The termination was based on allegations

that Respondent left an unattended child on a school bus and that Respondent had not followed safety procedures requiring inspection of the bus for students at the completion of each school bus run.

On June 13, 2008, Respondent requested an administrative hearing to contest the termination of her employment. On June 16, 2008, Petitioner referred the hearing request to the Division of Administrative Hearings.

On July 21, 2008, the undersigned issued a Notice of Hearing by Video Teleconference. The notice scheduled the hearing for September 18, 2008.

On August 11, 2008, the undersigned issued an Amended Notice of Hearing. The amended notice advised the parties of a change only in the hearing location.

During the hearing, Petitioner presented the testimony of four witnesses, including Respondent. Petitioner offered four exhibits that were accepted as evidence. As agreed at the hearing, Petitioner filed Carolyn Scott's post-hearing deposition in lieu of live testimony on October 31, 2008.

Respondent testified on her own behalf. Petitioner did not offer any documentary evidence.

A transcript of the hearing was filed on October 31, 2008.

Petitioner filed a Proposed Recommended Order on November 13, 2008. As of the date that this Recommended Order was issued,

Respondent had not filed proposed findings of fact and conclusions of law.

FINDINGS OF FACT

1. At all times material here, Petitioner employed Respondent as a school bus driver. Respondent worked in that capacity for approximately 15 years.

2. Respondent received 40 hours of initial training and eight hours of update training each year. The training included safety procedures.

3. One of the safety procedures was a requirement for the bus driver and/or bus aide to walk from the back to the front of the bus at the completion of each run. During the walk, the driver and/or aide were supposed to observe each seat and the floor to ensure that no children were left on the bus.

4. Leaving a child unsupervised on a bus, intentionally or through omission, is a very serious matter. Such misconduct by a bus driver creates an unacceptable risk of harm to a child.

5. In February 2005, Petitioner suspended Respondent without pay for ten days. Petitioner based the suspension on Respondent's failure to follow safety procedures to ensure that a child was not left unattended on a bus.

6. In May 2008, Respondent was one of two school bus operators assigned to deliver parents and children to an adult education and parenting program known as Family Resource

   Activity Model for Early Education (FRAME). The program was located at the McMillian Learning Center in Pensacola, Florida.

7. On April 14, 2008, Respondent drove a bus, including adults and children to the learning center. Upon arrival, Respondent hurried to the restroom without first inspecting the bus to insure that no children remained on the bus.

8. After exiting the bus and utilizing the restroom inside a building, Respondent remained in a sitting area for several more minutes. While Respondent and other bus drivers discussed future school bus operations, a four-year-old child was sleeping unattended on Respondent's bus.

9. The child's parent arrived at the school by another means of transportation. The parent immediately began to look for the young child. The parent inquired but received no response about the location of the child from Respondent. The parent continued her search in the school building.

10. Next, Respondent decided to accompany another school bus driver for an additional run. Respondent requested Carolyn Scott, a bus aide, to go to Respondent's bus and retrieve her purse so that she could take it with her.

11. Pursuant to Respondent's request, Ms. Scott boarded Respondent's bus and found the child asleep on the bus.

    Ms. Scott awakened and removed the child from the bus. The child was then placed in the proper classroom.

12. Linda Harris, FRAME's program director, learned about the incident and reported the facts to Petitioner's Transportation Department.

13. The greater weight of the evidence indicates that Respondent left the child on the bus and failed to perform the required safety check before or after she used the restroom. Respondent was not aware the child was sleeping behind her seat when she left the bus. Respondent's testimony to the contrary is not persuasive.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes (2008).

15. Petitioner has the burden to establish by a preponderance of the evidence that Respondent's employment should be terminated. See McNeill v. Pinellas County School Board, 678 So. 2d 476, 477 (Fla. 2nd DCA 1996); Sublett v. Sumter County School Board 664 So. 2d 1178, 1179 (Fla. 5th DCA 1995).

16. Section 1012.40(2)(b), Florida Statutes (2008), states as follows:

    (b) Upon successful completion of the probationary period by the employee, the employee's status shall continue from year

    to year unless the district school superintendent terminates the employee for reasons stated in the collective bargaining agreement . . . .

    
    

17. The July 1, 2005, to June 30, 2008, Master Contract between The School District of Escambia County and The Union of Escambia Education Staff Professionals, FEA, NEA, AFT (Master Contract) states that support personnel may be terminated for just cause. Just cause includes, but is not limited to, misconduct in office, incompetence, gross insubordination, willful neglect of duty, and/or an action involving moral turpitude.

18. In this case, Petitioner met its burden of showing just cause for terminating Respondent's employment. Respondent's repeated failure to follow safety procedures resulted in a small child being unattended on a school bus on two occasions. Her actions and omissions certainly constitute misconduct in office that justifies termination of employment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED:

That Petitioner enter a final order terminating Respondent's employment.

DONE AND ENTERED this 15th day of December, 2008, in Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 15th day of December, 2008.

COPIES FURNISHED:

Joseph L. Hammons, Esquire

Hammons, Longoria & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501-3125

Lula Williams

1604 West Scott Street Pensacola, Florida 32501

Jim Paul, Superintendent Escambia County School District

215 West Garden Street Pensacola, Florida 32502

Dr. Eric J. Smith Commissioner of Education Department of Education

Turlington Building, Suite 1514

325 West Gaines Street Tallahassee, Florida 32399-0400

Deborah K. Kearney, General Counsel Department of Education

Turlington Building, Suite 1244

325 West Gaines Street Tallahassee, Florida 32399-0400

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 08-003220

Orders for Case No: 08-003220